This Agreement is by and between FSM Technologies, LLC d/b/a Service Fusion (Service Fusion) and the individual or company purchasing this subscription (Subscriber), collectively referred to as the “Parties”. The effective date of this Agreement shall be the date on which Subscriber executes this Agreement by signing in the signature block.
Description and Fees of Ordered Services
This Agreement reflects your order of certain Services, listed on the online ordering page. The listing specifies which Tier of Services you have ordered, and which Services are provided under that Tier.
All licenses for the Services and the period of performance for all Services and support shall be effective upon receipt of initial payment.
Expiration Date and Termination Provisions
Unless Subscriber sends a written cancellation notice to Service Fusion at least 30 days prior to the expiration of the duration of the subscription, this subscription to the Services shall be automatically renewed for a term equal to the original term, at the current market rate for the Services.
Fees, Invoicing, and Payment Obligation
In accordance with the Agreement and the pricing structure listed on the online ordering page, subscription fees shall be invoiced as of the effective date of this Agreement. All fees due under this Agreement are non-cancelable, and the sums paid thereunder are nonrefundable.
Together with the license to the Services, Subscriber shall receive Support for the Services from Service Fusion. Support consists of:
- Program updates, fixes, and security alerts;
- Assistance with service requests during normal business hours, exclusive of all U.S. federal holidays.
- Non-technical customer service during normal business hours, exclusive of all U.S. federal holidays.
By accepting this Agreement you agree to follow and be bound by the terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of this Agreement and, in such event, “you” and “your” as used in this Agreement shall refer to such entity.
“You” and “your” refers to the individual or entity that has ordered Software as a Service from FSM Technologies, LLC d/b/a Service Fusion (“Service Fusion”) by executing the Agreement. The “Parties” collectively refers to Service Fusion and yourself. Software as a service includes the right to use the Service Fusion software programs and support services described on the online ordering page, for purposes including but not limited to customer account management, project management, estimate and job management, dispatching, invoicing, payment processing, reporting, mobile applications and field management tools for workers, and mobile applications and web portals for customers (collectively, the “Services”). The term “Service Fusion Programs” refers to the software products owned by Service Fusion to which Service Fusion grants you access as part of the Services and any program updates provided as part of the Services. The term “Users” shall mean those individuals authorized by you or on your behalf who are your employees or contractors to use the Services. The term “Your Data” refers to the data provided by you that resides in your Services environment.
Upon Service Fusion’s acceptance of your order, as per the Agreement, and for the duration of the Services term defined within the online ordering page, you have the nonexclusive, non-assignable, royalty free, limited worldwide right to use the Services solely for your internal business operations and subject to the terms of this Agreement. The Services are provided as described in the online ordering page. The Services shall be provided in tiers, with each tier providing a different set or subset of the Services. The online ordering page shall specify which tier of Services you have purchased, together with the details about the set or subset of Services you will receive under that tier.
The number of users you may allow to use the Services is specified on the online ordering page. These Users may use the Services for this purpose and you are responsible for your Users’ compliance with the Agreement.
You agree that you do not acquire under the Agreement any license to use the Service Fusion programs specified in the Agreement in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services thereunder, your right to access or use the Service Fusion programs specified on the online ordering page and the Services shall terminate.
Ownership and Restrictions
You retain all ownership and intellectual property rights in and to your data. Service Fusion or its licensors retain all ownership and intellectual property rights to the Services and Service Fusion programs. Service Fusion retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.
Third party technology that may be appropriate or necessary for use with some optional Service Fusion Programs as specified on the online ordering page as applicable, such as text messaging, voice over IP calling, automated appointment reminders, GPS fleet tracking, and template based website development. You understand that any such third party technology is not under the control of Service Fusion, and you do hereby do release Service Fusion from any and all liability or damages arising from your use, or Service Fusion’s use of the third party technology.
You shall not:
- remove or modify any program markings or any notice of Service Fusion’s or its licensors’ proprietary rights;
- make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations;
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Service Fusion.
- disclose results of any Services or program benchmark tests without Service Fusion’s prior written consent; and
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Service Fusion Programs or materials available, to any third party.
You agree that the taking of any of the foregoing prohibited actions constitutes a material breach of this Agreement, and you waive any and all defenses to such breach.
The rights granted to you under the Agreement are also conditioned on the following:
- the rights of any User licensed to use the Services cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the Services);
- no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
- you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
You agree that the breach of the foregoing conditions constitutes a material breach of this Agreement, and you agree to waive any and all defenses to such breach.
Warranties, Disclaimers and Exclusive Remedies
Service Fusion does not guarantee that the Services will be performed error-free or uninterrupted, or that Service Fusion will correct all Services errors. You hereby release Service Fusion of any and all liability or damages resulting from errors or interruption with the Services, as well as any failures by Service Fusion to correct service errors.
You acknowledge that Service Fusion does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. You agree that Service Fusion is not responsible for any delays, delivery failures, or other damage resulting from such problems, and release Service Fusion from any and all liability and damages resulting from such problems.
To the extent not prohibited by law, these warranties are exclusive and there are no other express or implied warranties or conditions for systems, networks, environments, merchantability, satisfactory quality, and fitness for a particular purpose.
Support services provided under the Agreement are specified in the Services policies referenced on the online ordering page.
End of Agreement
Services provided under this Agreement shall be provided for the period defined on the online ordering page unless terminated earlier in accordance with the Agreement. The term of the Services and any renewal terms are collectively defined as the “Services Term.” Whether the Services Term is monthly and reoccurring, or for a set number of months, is specified on the online ordering page. At the end of the Services Term, all rights to access or use the Services, including the Service Fusion programs listed on the online ordering page, shall end.
If you breach a material term of the Agreement or violate any of the terms of Section 3, 4, 8, 9, 12, 14 then you are in default and Service Fusion may terminate the Agreement under which the breach occurred. If Service Fusion ends the Agreement as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses.
You agree that if you are in default under the Agreement, you may not use the Services ordered. In addition, Service Fusion may immediately suspend your password, account, and access to or use of the Services (i) if you fail to pay Service Fusion as required under the Agreement and do not cure within ten (10) days or (ii) if you violate any provision within Section 3, 4, 8, 9, 12, 14 of this Agreement. Any suspension by Service Fusion of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under the Agreement. At your request, and for a period of up to 15 days after the termination of the Agreement, Service Fusion shall permit you to access the Services solely to the extent necessary for you to retrieve your information from the Services.
If the Services Term as specified on the online ordering page is monthly and reoccurring, you may cancel by providing written notice 30 days in advance of when the cancellation is desired. If the Services Term as specified on the online ordering page is for a set number of months, no refund of any funds paid to Service Fusion shall be provided.
You agree and acknowledge that Service Fusion has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the Agreement. Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, payment, rights granted, ownership and restrictions, warranties, nondisclosure, statistical information, and others which by their nature are intended to survive.
Fees and Taxes
You agree to pay for all Services ordered as set forth on the online ordering page. All fees due under the Agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Service Fusion must pay based on the Services you ordered, except for taxes based on Service Fusion’s income, and you agree that Service Fusion may include such taxes together with the other fees due under this Agreement. Fees for Services listed on the online ordering page are exclusive of taxes and expenses, unless stated otherwise. All amounts invoiced hereunder are due and payable on the date of the invoice.
You agree that you have not relied on the future availability of any Services, programs or updates in entering into the payment obligations under this Agreement; however, the preceding does not relieve Service Fusion of its obligations under this Agreement.
By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). You and Service Fusion each agree to disclose only information that is required for the performance of obligations under the Agreement. Confidential information shall be limited to the terms and pricing under the Agreement, your data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that:
- is or becomes a part of the public domain through no act or omission of the other party;
- was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
- is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
- is independently developed by the other party.
You and Service Fusion each agree to hold each other’s confidential information in confidence until such confidential information is no longer considered confidential under the exclusions a-d listed above. Also, the Parties each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Service Fusion will protect the confidentiality of your data residing in the Services environment using reasonable care. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from, or in connection with, the Agreement, or from disclosing the confidential information to a governmental entity as required by law.
You agree that this Agreement is the complete Agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.
If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement.
The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by the Parties.
Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE, FOR ANY REASON. SERVICE FUSION’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO SERVICE FUSION FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Service Fusion is an independent contractor and you agree that no partnership, joint venture, or agency relationship exists between the Parties. The Agreement is governed by the substantive and procedural laws of Texas and the Parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Dallas County in any dispute arising out of or relating to the Agreement.
If you have a dispute with Service Fusion, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: FSM Technologies, LLC at 1904 Industrial Blvd., Ste. 103, Colleyville, TX 76034. Service Fusion may give notice applicable to Service Fusion’s Software as a Service customer base by means of a general notice on the Service Fusion portals or applications for the Services, and notices specific to you by electronic mail to your e-mail address on record in Service Fusion’s account information or by written communication.
You may not assign the Agreement or give or transfer the Services or an interest in them to another individual or entity.
Except for actions for nonpayment or breach of Service Fusion’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
Neither Service Fusion nor yourself shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; other event outside the reasonable control of the obligated party. You and Service Fusion both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either Service Fusion or yourself may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.
Restrictions on Use of the Services
You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, © violate privacy rights, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations.
In addition to any other rights afforded to Service Fusion under the Agreement, Service Fusion reserves the right to remove or disable access to any material that violates the foregoing restrictions. Service Fusion shall have no liability to you in the event that Service Fusion takes such action.
You agree to defend and indemnify Service Fusion against any claim arising out of a violation of your obligations under this section.
Service Fusion may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve your Service Fusion service requests. The Tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. You agree that Service Fusion’s use of the Tools shall not be considered a breach of the nondisclosure provisions of Section 9 of this Agreement.
Statistical Information Service Fusion may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. Service Fusion retains all intellectual property rights in such information. You agree that Service Fusion’s collection and publication of such statistical information shall not be considered a breach of the nondisclosure provisions of Section 16 of this Agreement.
Third Party Web Sites, Content, Products and Services
The Services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Service Fusion is not responsible for any third party Web sites or third party content provided on or through the Services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.